Practice Advisory on Interim Memo regarding law students, graduates and other representatives appearing before United States Citizenship and Immigration Services
By Galya Ruffer, JD, PhD, Director, Center for Forced Migration Studies (CFMS), Buffett Center for International and Comparative Studies, Northwestern University, with the assistance of CFMS student intern Catherine Tyson, Anthropology and International Studies, Class of 2014.
On 17 January 2012, the United States Citizenship and Immigration Services (USCIS) published an Interim Memorandum to clarify its policy on the role of law students, graduates and other representatives who appear before USCIS. The Interim Memo raises ambiguity regarding the explicit authorisation of law students and law graduates to provide legal advice and representation, constituting practice and preparation, and ability to appear and provide legal representation on behalf of immigrants and refugees at interviews before USCIS.
Responding to the comment deadline (14 February 2012), clinical law professors submitted their concerns highlighting an overall concern that the Interim Memo seems to call into question the current practice in law school immigration clinics of relying on the rules permitting law students and law graduates to enter their appearance on behalf of immigrants to provide representation. Given the unmet needs in the immigration and asylum process for legal representation, clinics serve a dual role of providing a public service to the hundreds of individuals students and recent graduates who currently represent and providing essential training into immigration and asylum law practice.
Although the Interim Memo does recognise that law students and law graduates in clinics are authorised explicitly to provide representation, constituting practice and preparation, and recognises that law students and law graduates may provide legal advice in interviews, there is contradictory phrasing in its discussion of ‘non-legal assistance’ stating that non-attorney or non-accredited representatives may only ‘provide non-legal assistance’ at USCIS interviews. Absent of clarification, the phrasing may unduly restrict the ability of properly supervised law students and graduate students to represent clients at asylum interviews, adjustment interviews and naturalisation interviews.
The Interim Memo also relies on a definition of ‘practice of law’ that has been superseded, suggesting that supervised law students and law graduates cannot prepare asylum applications, applications under the Violence Against Women Act (VAWA) or naturalisation applications. In addition, the comments submitted by the clinical law professors seek assurance of the right of both the supervising attorney and the law student to be present at an interview for training purposes. Currently, USCIS officers often block the entry of both the supervising attorney and the law students.
The Interim Memo may affect the ability of law students and other representatives who prepare affirmative asylum interviews, naturalisation applications, renewals of employment authorisation documents, help clients adjust to lawful permanent residence, or renew Temporary Protected Status that require practice before USCIS at district offices, Freedom of Information Act offices or the multiple different Service Centres nationally, to be the representative for their clients. Specifically, the Interim Memo creates unwarranted divisions among different categories of representatives giving the impression that only ‘an attorney in the United States, an attorney outside the United States…or an accredited representative of a recognised organisation’ can submit a notice of appearance or receive written communications from USCIS but cites a regulation that does not support this restricted assertion (8 CFR 292.5(b) (‘Right to Representation’). The language in the regulations routinely refers to ‘attorney or representative’ without differentiation.
Similar ambiguities seem to call into question the legal capacity of law students and other representatives, including confusing guidance on whether students can file the G-28 notice of legal representation to enter their appearance. Law clinic professors are requesting that the final Memo clearly state in its text that law graduates and law students may sign G-28s themselves. If a law student or law graduate cannot sign a G-28, he or she will be unable to communicate with USCIS over routine matters such as adjourning an asylum interview or requesting the rescheduling of a biometrics appointment. More broadly, if law students and law graduates are entirely forbidden to communicate with USCIS, the ability of legal clinics to represent the many hundreds of individuals will be threatened, because such a prohibition will create an unmanageable bottleneck where only supervisors can do the necessary communications on cases.
